COVID-19: Data Protection and Internet Access During the Pandemic

Ecuador has yet to adopt measures to protect and regulate citizens' data, nor has it been able to ensure internet access for the entire population

The global health emergency caused by the spread of the COVID-19 virus has led the governments of the hardest-hit countries to adopt measures to slow the virus’s spread. The crisis caused by the virus has highlighted the need to adapt our way of life and legislation to address situations that had not previously been addressed. Some of these issues are not new, but they have been exacerbated by the consequences and impact of the virus on our society, such as the protection of personal data and access to the internet. In Ecuador, both issues have been addressed repeatedly in recent years, but so far, no legislative decisions have been adopted to protect and regulate the protection of citizens’ data, nor have measures been taken to guarantee internet connectivity for the entire population. Personal Data Protection In 2018, the National Directorate of Public Data Registration (Dinardap) worked on developing a preliminary draft bill on personal data protection, with the support of various civil society organizations, public institutions, and universities. It was not until September 2019 that the executive branch submitted the Organic Bill for the Protection of Personal Data to the National Assembly.asambleanacional.gob.ec/alfresco/d/d/workspace/SpacesStore/0735e2b3-6545-4f66-afe4-0d7eee51e6c5/Proyecto%20de%20Ley%20Org%E1nica%20de%20Protecci%F3n%20de%20Datos%20Personales%20Tr.%20379637.pdf). The presentation was preceded by a massive personal data breach that highlighted the importance and necessity of a law addressing the processing of this type of data, and brought the debate on this issue back into the public spotlight. The National Assembly viewed the data breach with great concern, which is why an investigation by the Committee on Sovereignty and International Relations. On May 11, 2020, the Commission ruled that “there is sufficient evidence of a failure to enforce laws, regulations, and resolutions, which suggests a breach of the duties established in the Constitution and the law by officials of the Ministry of Telecommunications and the Information Society (Mintel).” This same Commission is currently reviewing the bill submitted by the executive branch. During the COVID-19 health emergency, Executive Decree No. 1017 authorized the use of satellite and mobile phone platforms to monitor the location of individuals under public health quarantine and/or mandatory isolation. In addition, the government launched the Salud EC app, with the goal of tracking citizens’ health status and connecting patients with services offered by the public health system. This is a voluntary app where users must enter personal information, including details about their health status, and which allows access to cell phone location data. For its part, the Ministry of Telecommunications, with the support of public and private entities, developed a platform that will enable data analysis to monitor the quarantine, detect cases, identify areas with the highest concentrations of people, and organize mass testing for COVID-19. The information comes from various sources, such as calls received at the 171 emergency number, data obtained from the Salud EC app, and information shared by mobile phone providers. The processing of personal data is of great importance, especially in a context like the current one, where the information being handled contains sensitive data regarding people’s health. The Inter-American Commission on Human Rights has stated that States must prohibit the processing, analysis, or disclosure of such data except when they are authorized to do so or with the consent of the affected individual. The Constitutional Court of Ecuador, clearly stated that the use of these technologies must be limited solely to the purposes of the state of emergency and to the goal of tracking the virus and isolating individuals who may potentially spread the infection. Laws on the protection and processing of personal data must regulate the storage, processing, use, and transfer of personal data, whether between government entities or with respect to third parties.1 Internet Access For several years, the international community has emphasized the importance of ensuring multilateral, transparent, and democratic access to the internet, guaranteeing its stable and secure operation, while taking multilingualism into account.2 The United Nations Human Rights Council has recognized internet access as a human right, urging States to facilitate access to information on the internet and reduce the digital divide.3 According to published figures by the Telecommunications Regulation and Control Agency (ARCOTEL), as of March 2020, 52.98% of Ecuadorians have mobile internet access and 12.25% have fixed-line internet access. The provinces with the highest coverage are Pichincha, home to the capital city of Quito, and Guayas, home to the city of Guayaquil. The lowest percentage of coverage is in rural areas. 1 IACHR. Standards for a Free, Open, and Inclusive Internet. OAS/Ser.L/V/II CIDH/RELE/INF.17/17 March 15, 2017. Para. 204. 2 Organization of American States. General Assembly. Santo Domingo Declaration. Governance and Development in the Knowledge Society. OAS Doc. AG/DEC. 46 (XXXVI-O/06). June 6, 2006. Para. 17 3 United Nations. Human Rights Council. Promotion, Protection, and Enjoyment of Human Rights on the Internet. A/HRC/32/L.20. June 27, 2016. _ In the current context, the Internet has become an essential tool for guaranteeing people’s right to work, education, and information. In the first case, the shift to remote work has required employers and employees to replace in-person meetings with video calls and emails. Similarly, in the case of education, children, adolescents, and college students have had to replace in-person classes with virtual classes using platforms that require an internet connection. In both cases, this has meant that households without an internet connection or sufficient bandwidth have been excluded from these activities, thereby undermining their right to work and education. Furthermore, access to public information—especially during the pandemic—is essential for keeping citizens informed about the pandemic’s progression, the number of active cases, and prevention strategies. Internet access in these cases is essential, as it “[…] makes it possible to increase the amount of publicly available information, disseminate it widely and at low cost, and publish it dynamically, allowing people to work with and on that information.”4 Therefore, it is essential that states develop plans, policies, and laws aimed at implementing the necessary infrastructure to provide all sectors with access to the internet, including both broadband and mobile internet. This also requires that internet access be free from interference and blocking.5 @MartinaRapidoR 4 IACHR. Standards for a Free, Open, and Inclusive Internet. OAS/Ser.L/V/II CIDH/RELE/INF.17/17 March 15, 2017. Para. 176 _ 5 IACHR. Standards for a Free, Open, and Inclusive Internet. OAS/Ser.L/V/II CIDH/RELE/INF.17/17 March 15, 2017. Photo Credit: @barkiple